42 F. 292 -

42 F1d 292

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Case Text

FEDERA.L REPORTER I

vol. 42.

orders which were sent to him, was required to communicate information to the engineer of the east-bound train how to run and what to do. He was a co-employe with them in the same common employment-common service-of operating both trains at that time, and, within the definition of who are "fellow-servants" and who are "co-employes," I think he comes within that rule. So that, as the cll.&,e now stands, even if the jury should find sufficient evidence tending to show that the telegraph operator failed in his duty, although he states that he had performed it, yet, under the rule of law as I have announced it, the plaintiff cannot recover. The negligence of the telegraph operator was not the negligence of the railroad company. The motion must be granted. Ordered accordingly.

Under Act Congo March 8, 1888, prescribing rates of duty on wood and wooden wares, gun blocks, which are not "rough-hewn or sawed only," but are planed on two sides, are subject to an ad duty of 35 per cen"

At Law. On writ of error from district court. Edward Mitchell, for the United States. Haraey &- Coleman, for defendants in error.
WALLACE, J. The provisions of Schedule D of the tariff act of March 3, 1883, in prescribing rates of duty to be collected upon wood and wooden wares, make a plain discrimination between articles that are hewn and sawed, or saw-edonly, and those that are planed on one or both sides. Unless gun blocks are "rough-hewn or sawed only," they fall within the classification of "manufactures of wood not specifically enumerated or provided for," and are subject to an ad valorem duty of 35 per centum. The gun blocks imported by the defimdant8 in error were made from planks first sawed to get the proper thickness of lumber, and then passed under a planing· machine, after which they were cut from the planks in the form of the design marked out in pencil on the planed surfaces of the planks. Thus, when imported, they were planed on both sides, and were a manufactured article in a crude form. The court below erred in instructing the jury to find a verdict for the defendants. Such an instruction could only have been warranted by evidence showing that the gun blocks were rough-hewn or sawed only, and the testimony was all the other way. The judgment is reversed, and the case remanded to the district court for a new trialj costs of this court to be paid by the defendants in error.

In patents No. 225,071, to Henry F. Packard, and No. 232,804, to Frank V. Sanford, for improvements in electric gas-lighting apparatus, the claims consisted of a com· bination of a gas-burner, a fixed electrode, a ratchet, a pawl, a spring, a lever pivoted loosely on the stem of a stop·cock, and having. two arms, to one of which was attached an elastic contact point, and stop-pin; the combination being so arranged as to open and close the gas passage to the tip at each alternate movement of the lever, and, conjointly with such opening, to ignite the gas by an electric spark, generated by such movement,-devices which shonld, Without actuating the gascock, repeat tile electric spark by the return movement of the opening devices to their normal position for further use. that, though some parts of the mechanism were old, the combination was new and useful, and the invention was patentable.

COLT, J. This is a bill in equity, brought for the infringement of letters patent No. 225,071, granted to Henry F. Packard, and No. 232,304, granted to Frank V. Sanford, for improvements in electric gas-lighting apparatus. The patents relate to that form of electric gas-lighting where the burner is operated by hand, and which does away with the use of matches. Packard says in his specification:
.. My invention consists in certain novel devices, hereinafter fully described, by means of which the gas is turned on by pressing or pulling down and then releasing a lever fitted loosely to the stem of the cock, and thereby causing a vibrating arm to sweep past the tip of the bumer; also, in the combination, with the said devices, of an electric contact-point fixed upon the end of the said vibrating arm, and of a fixed electrode located in close prOXimity to the orifice from which the gas issues, one of the said electrodes being insulated from the burner, and which, by the action of the said devices, are caused to make and break contact when the gas is turned on, thereby producing an electric spark and igniting the gas."

The claims relied upon are the third and fourth, which are as follows:
"3. In combination with a gas-burner, A, and a fixed electrode, n, the ratchet, D, pawl, h. spring, F, lever, E, pivoted loosely upon the stem of the cock and ha,-ing two arms, f and g, to the latter of which is attached an elastic contact-point, and stop-pin. k, as and for the purposes set forth. "4. In an electric gas-lighting apparatus, in combination with devices constructed and arranged to open and close the gas-passage to the tip at each aiternate movement thereof, and, conjointly with such opening to ignite the by an electric spark generated by such movement, devices which shall, witbout alltuating the gas·cock, repeat the electrical spark by the return movement of the opening devices to their normal position for further use, substantially as described and shown." .

The Sanford device is snbstantially like the Packard, with the additiod of a chain which is attached to the arm of the lever. By pulling the